This post raises two particular related issues with regard to the utilization of the equal protection guarantees of the Fourteenth Amendment to secure marriage equality for same-sex couples through federal adjudication. The first regards the basic U.S. Constitutional matter that, in order for the federal judiciary to rule on a particular controversy, a federal Constitutional question must be implicated. The second concerns the issue of alternatives to civil marriage considered against the question of interstate transferability and U.S.domestic partisan alignments.
To begin, should individuals expect federal adjudicative enforcement in Article 3 courts of equal protection under the law in legislative or regulatory matters at the state level where no federal Constitutional question is implicated? In my view, the answer to this question should be quite clear to any student of U.S. Constitutional law. Article 3, section 2 of the U.S. Constitution enumerates the list of issues that will be adjudicated before federal courts. Conceding, moreover, a substantial leeway for very broad areas of federal legislative authority (e.g. laws passed pursuant to Congress' authority to regulate interstate commerce), a capacity for the federal judiciary to adjudicate disputes arising at the state level or between individual U.S. citizens and their state does exist, insofar as the dispute concerns areas under the ultimate authority of the U.S. Constitution. However, the authority of the U.S. Constitution vis-à-vis state governments and individual U.S. citizens is strictly limited by the particular enumerated terms of the Constitution, in particular the Article 1 enumerated powers of Congress. Federal Article 3 courts do not have jurisdiction to enter into disputes between U.S. citizens and their state governments where there is no federal question implicated in the dispute.
Before moving forward to the central area of concern for this post, I should elaborate on the extension of federal powers, particularly since the "judicial revolution" of 1937. Significantly, the boundaries of Congress' authority to regulate interstate commerce have exploded since 1937 and are only beginning, in the last twenty years, to be restrained by the federal judiciary. In particular, any federal authority to intervene in educational processes at the state or local/county/municipal level emanates from the commerce clause - regulation of educational processes bears such a substantial relationship to the capacity of the federal government to promote interstate commerce, especially as the creation and dissemination of information becomes a key input to economic development, that the creation of statutory and regulatory enactments on educational policy by Congress and by legislatively empowered executive agencies constitutes a "necessary and proper" utilization of Congressional legislative power to execute its enumerated Constitutional authority to regulate interstate commerce. However, this extension of the commerce power is not limitless. In 1995, the Rehnquist Court invalidated the Gun Free School Zones Act of 1990 as an overextensive use of the Congressional commerce power, holding, in effect, that the mere possession of firearms on the grounds of local schools did not constitute a sufficient hindrance to educational processes to enable Congress to regulate such activities pursuant to its authority to regulate interstate commerce (see U.S. v. Lopez (514 U.S. 549 (1995), at: https://supreme.justia.com/cases/federal/us/514/549/case.html). Neither the enumerated and implied powers of Congress nor the enumerated Article 3 areas of federal judicial jurisdiction are infinite in scope. In this sense, the Ninth and Tenth Amendments, stating, respectively, that individuals retain certain liberties not otherwise specified by the Bill of Rights and that powers not otherwise delegated to the federal government by the Constitution nor prohibited to the states were to be reserved to the states and/or to individuals, do not constitute literary fictions or quaint principles no longer in use by virtue of the innate complexities of Twenty-first century governance! If a particular power or area of judicial jurisdiction is not listed or otherwise implied by the U.S. Constitution, including its amendments, then the federal government does not have the authority to exercise it.
Acknowledging the limitations that face the federal judiciary with respect to particular areas normally reserved to state governments, my question concerns the regulatory location of civil marriage contracts. Where is a federal question, consistent with the Constitutional jurisdictions of federal Article 3 courts, implicated in the institution of civil marriage? In answering this question, I want to err on the side of caution and acknowledge that there is ample judicial precedent for Article 3 courts approaching questions with regard to the institution of civil marriage, as instituted by states, through the equal protection clause of the Fourteenth Amendment. Before I approach this body of jurisprudence, however, I want to evaluate the connection of civil marriage to other provisions of the U.S. Constitution to evaluate speculatively in what other federal powers and areas of jurisdiction might implicate civil marriage.
The logical place to start in such an investigation is Article 1, Section 8 - the enumerated powers of Congress. The first clause in this section deals with Congress' capacity to impose taxes, a power further modified by the Sixteenth Amendment (allowing the collection of income taxes). Federal taxation policies directly implicate the institution of marriage insofar as married couples may file income taxes jointly and, in so doing, enjoy tax benefits or incur penalties (see Tax Policy Center, "Taxation and the Family: What are marriage penalties and bonuses?", at: http://www.taxpolicycenter.org/briefing-book/key-elements/family/marriage-penalties.cfm). As a subsidiary matter, marriage is implicated in policies by the Social Security Administration regarding, among other things, spousal retirement and survivor benefits for vested recipients of Social Security retirement benefits. Finally, as the issue directly implicated in the challenge to the Defense of Marriage Act (DOMA) in U.S. v. Windsor (570 U.S. ___(2013)), the administration of estate taxes implicates marriage to the extent that married couples generally incur no tax liability for the transfer of an estate when one spouse dies. For all these reasons, the tax power of Congress directly implicates the institution of marriage. However, the Congressional tax power does not, in any way, presuppose an extension of Congressional authority to regulate the institution of civil marriage in order to assess taxes for individuals or couples as a "necessary and proper" implied power of Congress - Congress can confer tax benefits, impose tax penalties, or alter its respective provisions regarding married couples, for taxes or Social Security benefits, without ever actually challenging the definitions of marriage instituted by state governments through their respective constitutions and statutory provisions. The authority of state governments to define marriage free from Congressional interference is, in this sense, presumed as a matter of tradition (to say nothing of the Tenth Amendment) in relation to Congress' taxing and spending authority. As such, the Supreme Court's invalidation of DOMA's definitions of civil marriage for purposes of federal statutory and regulatory business in Windsor should have followed directly from such a presumption.
Moving forward, the third clause in Section 8 is Congress' statutory powerhouse, the commerce clause. If there was any reason why the federal government should be injecting itself into the institution of civil marriage, then it would probably derive its authority by virtue of its relationship to interstate commerce. To be fair, in this respect, there might be a basis for federal involvement in defining marriage in relation to the promotion of interstate commerce evident in the wedding industry. The wedding industry is a substantial business for the U.S., involving 2.15 million ceremonies in 2013, with an average cost of $25,200 and a total market value of $54.3 billion (see The Wedding Report, "2013 Wedding Statistics Summary for the United States," at: http://www.theweddingreport.com/wmdb/index.cfm?action=db.viewdetail&t=s&lc=00&setloc=y). Presumably, a liberalization of the definition of marriage, enabling more couples to enter into the institution, could have a positive impact on interstate commerce, stimulating a range of goods and services providers at various market scales.
I am not going to completely disregard this particular rationale for the federal government to get involved in same-sex marriage. On the other hand, it is one thing for Congress to step in to expand the range of powers and regulatory fields in its purview through a well reasoned application of its authority for the purposes of economic development, even if the traditional authority of states might trump such reasoning. It is another thing entirely for the federal judiciary to autonomously conclude that, because valid reasons exist for Congress to link economic motives to social policies at the state level, a valid federal issue exists without any Congressional statutory enactment in place. Such an action would contort the separation of powers between Congress and the Article 3 courts. Further, the wedding industry operates through an incidental relationship to the institution of civil marriage, per se. Couples can hold a wedding ceremony whether or not they actually enter into civil marriage, and they can hold big, expensive parties with hundreds of guests whether or not they ever contemplate marriage. The social implications inherent in any redefinition of the civil contract of marriage, particularly those regarding to the care and responsibility for children arising from the marital union, extend far beyond the tangential economic relevance of the wedding industry. Beyond the economic relevance of the wedding industry, moreover, I cannot conceive of how Congress might link an effort to usurp the authority of states to define civil marriage to its power to regulate interstate commerce outside of some unbearably circuitous reasoning.
Moving forward from the range of Article 1, Section 8 enumerated powers, one additional consideration appears evident in Article 1. Section 10, clause 1 forbids states from impairing the obligations of contracts. This particular provision, rarely adjudicated at least since the judicial revolution of 1937, simply guarantees that state governments lack the Constitutional authority to alter the terms of either privately negotiated contracts or contracts negotiated between individuals and the state. Since the judicial revolution of 1937, however, the federal judiciary has seen fit to allow states to alter wholly private contracts if strict adherence to such contracts might be reasonably construed to impair the state in the execution of its constitutional powers. Conversely, since the decision of United States Trust Co. of New York v. New Jersey (431 U.S. 1 (1977)), a heightened standard has been employed by the federal judiciary in evaluating a state's efforts to autonomously discharge its own contractual, and especially financial, obligations vis-à-vis private parties. Presumably, we can situate the civil marriage contract as one particular species of civil contract with the state, entered by couples under terms dictated by the state at the time of their marriage with a defined set of obligations and privileges conferred by the state onto the two contracting individuals. On the other hand, individual marriage contracts may take on a particular, hybrid public-private construction to the extent that the individuals entering into marriage add on supplemental contractual terms (e.g. a prenuptual agreement, negotiated and legitimated as a purely private contract between the two individuals entering into marriage). Leaving aside hybrid marriage contracts, it is my assumption that the federal judiciary would be unlikely to challenge as violations of the contract clause any efforts by a state to alter at will the obligations, privileges, and benefits of marriage contracts undertaken by couples in their jurisdictions provided such alterations met a rationality standard (i.e. it would have to meet a legitimate public purpose and be rationally related to the exercise of this purpose). Rather, any effort to change the terms of marriage contracts on the state level would likely be invalidated by the federal judiciary only to the extent that such changes generated differential treatment by the state between subject classes of couples. Such an invalidation would implicate the equal protection clause of the Fourteenth Amendment rather than the contract clause, however.
Article 4, section 2, mandates that the citizens of one state must be entitled to enjoy the privileges and immunities of citizens in every state. This clause implicates a particular federal Constitutional question from which an equal protection claim under the Fourteenth Amendment regarding the institution of civil marriage might be connected specifically to the terms of the U.S. Constitution. Married couples, joined under the terms of a particularly state's institution of civil marriage, must be treated as a particular subject class for whom a contractual bond has been conferred by one state. Under this clause, all states must respect the bond and extend to the couple all privileges, obligations, and benefits conferred on couples married within each given state of residence, should the couple decide to permanently relocate to another state. In this manner, the critical issue here concerns the transferability of a marriage contract across state lines.
Fleshing out my argument, a married couple in Alabama is conferred a particular set of privileges, obligations, and benefits. A different set of privileges, obligations, and benefits is conferred on a married couple in Massachusetts. If the couple from Alabama moves permanently to Massachusetts, then the set of privileges, obligations, and benefits conferred on the couple must change, by virtue of the fact that the regime of marital benefits and obligations are different between states. On the other hand, Article 4, section 2 ensures that the couple retains its basic contractual bond and its claim on benefits and obligations of marriage when it moves from one state to another.
This transferability of the recognition of a marriage contract from one state to another and vice versa is key. The problem is that such a transfer works for heterosexual marriages in every state, but, for states like Alabama that have constitutional prohibitions on recognition of same-sex marriages performed in other states, the transfer of a same-sex marriage contract is inhibited, violating the Constitutional requirements of Article 4, section 2. By this criterion, the federal judiciary would be acting within its authority to invalidate portions of the Alabama state constitution prohibiting recognition of same-sex marriages performed out of state when married same-sex couples permanently relocate to Alabama. Because Article 4, section 2 is contained within the Constitutional protections afforded to citizens of every state, the manifestly unequal protection afforded to same-sex couples represents a circumstance in which the equal protection guarantee of the Fourteenth Amendment addresses a valid federal question.
By this interpretation, same-sex couples in Alabama might be able to relocate temporarily to other states willing to issue marriage licenses to same-sex couples and relocate back to Alabama to compel the state to recognize their privileges and obligations under Alabama law as a married couple through the interstate transferability of marriage contracts. On the other hand, this reasoning cannot get me to the point where a federal Article 3 court has the authority to compel a state to issue marriage licenses to same-sex couples through the equal protection guarantee of the Fourteenth Amendment without conceding that the federal judiciary can intervene in policies for which the authority resides entirely within a state constitution (i.e. in a policy area where no federal issue is implicated outside of the purview of the Fourteenth Amendment). It is one thing to tell Alabama that it has to recognize the same-sex marriages of residents who were married in Massachusetts. It is a different matter to order an Alabama state probate judge in Birmingham to issue a marriage license to a gay couple that wants to be married under Alabama law.
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